Commons:Threshold of originality/ja

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The threshold of originality is a concept in copyright law that is used to assess whether or not a particular work, or a portion of it, can be copyrighted. It is used to distinguish works that are sufficiently original to warrant copyright protection from those that are not. In this context, "originality" refers to "coming from someone as the originator/author" (insofar as it somehow reflects the author's personality), rather than "never having occurred or existed before" (which would amount to the protection of something new, as in patent protection).

As a rule, copyright applies to a work as a whole. If a work contains a portion that is complex enough to receive copyright protection, then the whole work is considered to be copyrighted. One cannot upload said work to Commons by applying de minimis to the non-trivial portion.

The remainder of this page discusses images judged ineligible for copyright protection by a court or similar authority. It is usually impossible to determine whether a specific image is within the threshold of originality without a judicial decision. However, per precautionary principle, the image should be deleted if there is significant doubt that the image is not copyrighted.

For further information, see Threshold of originality on Wikipedia.

United States

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アメリカ合衆国

No information available

Civil law countries

Civil law countries usually require a relatively high minimum level of intellectual creativity which will exclude typical signatures and simple logos from copyright protection. However, this does not apply to all such countries. For example, Austria and China are both known to have a relatively low threshold of originality.

If you are aware of specific case law or legal advice on this issue in any country, please add a "Threshold of originality" section to the appropriate Commons:各国の著作権ルール country subpage, and add a link to it with an entry below.


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オーストリア

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ブラジル

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チェコ

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チリ

The phrase "Estamos bien en el refugio los 33", a message from the Copiapó miners (penned by Jose Ojeda), was copyrighted.

[1]

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中国

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デンマーク

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フィンランド

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フランス

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ドイツ

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ギリシャ

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ハンガリー

 

  • stylized text with a common stylized globe icon (does not show the actual image).[2]

OOjs UI icon close-ltr-destructive.svg  


Indonesia's threshold of originality is reportedly low, being based on common law ("Anglo-American model") principles, with "wallpaper, wrappers, packaging designs and technical drawings" being registered by copyright authorities.[4]

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イラン

No information available

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イタリア

Hogan Lovells states "In summary, the threshold for an industrial design product to enjoy copyright protection is still quite high and even famous industrial design products have been denied such protection by Italian Courts."[5]

Probably this applies to logos too. These files have been kept as simple logos:

But the logo of AC Parma was deleted as being a complex logo.[6] Another Parma logo has been deleted but then restored.

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日本

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リビア

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メキシコ

No information available

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オランダ

No information available

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ノルウェー

Not protected

Two-minute theatre play.[7]

Protected
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ペルー

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ポーランド

Per Tomasz Targosz (Institute of Intellectual Property Law, Jagiellonian University Kraków):

Polish copyright law has quite a long tradition of setting the threshold rather low, which may encourage frivolous lawsuits forcing courts to ponder whether simple graphic designs, short lines of text or even names should or should not be protected by copyright law.

[9]
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ポルトガル

No information available

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ロシア

No information available

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セネガル

Works of the mind may enjoy protection only if they are original. "Originality" means the work bears the stamp of the author's personality.[2008-09 Article 7]

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スロベニア

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大韓民国

No information available

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COM:TOO Spain

スペイン

STS 4443/2004 notes that a work must have the characteristics of "uniqueness, individuality and distinguishability" to qualify for protection.[10]

STS 1644/2017 concerns architecture and states "The terms in which an architectural project is drawn up largely respond to the technical or functional requirements and compliance with urban regulations. When this is the case, the project or the architectural buildings are not protected by copyright in the part imposed by those technical, functional or normative requirements"; and more generally, "the factor of recognizability or differentiation of the work with respect to the pre-existing ones [is] essential to grant an exclusive right with moral and patrimonial aspects".[11]

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COM:TOO Sweden

スウェーデン

"A simple general rule is that if it is unlikely that two persons would create, for example, a text identically or similarly, the text is probably sufficiently original to qualify as a protected work. (..) Often, the requirements for copyright protection are considered to be relatively low."[12] From the court cases below it can be concluded that the threshold of originality in Sweden is significantly higher then the ditto in the United Kingdom even though it might be considered low compared to the one in the United States.

Status Example Notes
 
IXXI logo.jpg
The text itself can't be considered to fulfill the general threshold of originality considered for copyright protection. This same interpretation is made whether one sees it as Roman numerals or Latin letters. The logo itself does have some figurative design. The font must however, despite some inconsistancies along the edges, be considered as ordinary and the black rectangle in the background does not contribute to any distinctive character. - Patent- och registreringsverket (Swedish Intellectual Property Office) Invändningsärende nr 2017/00120/01, Registrering nr 540495
 
A6 logo.png
The logo consists of an a and a 6. The round part of each character is not closed, however the characters are, besides that, made in a fairly ordinary font without any distinctive character. Between the characters is a simple, sun-feather resembelling, figure with a pointy tip which goes down between the characters. Above this figure there are four points, two to the left and two to the right. The logo is way to simple to be granted such copyright protection which can constitute an impediment for others' trademark registration. - Patent- och registreringsverket (Swedish Intellectual Property Office) Invändningsärende nr 2005/0006/0001, Registrering nr 369154.

This ruling was appealed to Patentbesvärsrätten (Patent court of appeals) which settled the original ruling (Mål nr 06-304, vm.reg. 369.154), albeit with one member of the court with a dissenting opinion. Unfortunately, they did not elaborate as to why they settled the original ruling.

 
Upphovsrätt på teknisk ritning.png
Technical drawing. According to decision by the Swedish Supreme Court.NJA 2004 s. 149
OOjs UI icon close-ltr-destructive.svg   https://shop.textalk.se/shop/4541/files/entombed/ENT_logo_web.png The logo has been created using a Gothic font in a way which is frequently used among bands in the genre in question [death metal]. The logotype can thus not be considered to fulfill the demands of originality and distinctive character needed for copyright protection. - Patent- och registreringsverket (Swedish Intellectual Property Office) Invändningsärende 2013/0133/0001, Registrering nr 514059.

According to the court, after a comprehensive assessment, the wordmark shows such level of indivudual, distinctive character that it must be considered to possess copyright protection. The court especially values the font of choice, the individual design of the first and last letter and the fact that the first and last letter has been written in caps. - Patent- och marknadsdomstolen (Patent and Market Court) PMÄ 10796-16

This ruling was appealed to Patent- och marknadsöverdomstolen (Patent and Market Court of Appeals) which settled the previous ruling (Mål nr PMÖÄ 5441-17). Unfortunately, they did not elaborate as to why they settled the previous ruling.

OOjs UI icon close-ltr-destructive.svg   A black-and-white version of fr:File:Dunderklumpen Logo.png Ruled above the TOO by Patent- och registreringsverket (Swedish Intellectual Property Office) (Varumärkesansökan nr 2014/00870), another part of the same ruling was appealed to the Patent- och marknadsdomstolen (Patent and Market Court) which settled the original ruling (Mål nr PMÄ 10748-16). Neither instance elaborated further as why the logo was ruled above the TOO but one can speculate that it was because it was a very obvious case.
OOjs UI icon close-ltr-destructive.svg   Michelin man lamp Ruled above the TOO by Patent- och registreringsverket (Swedish Intellectual Property Office) (Varumärkesansökan nr 2015/03538). The office did not elaborate further as why the logo was ruled above the TOO but one can speculate that it was because it was a very obvious case.
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4xcolor mini maglite 20050614.jpg
Mini Maglite torch (Mål: T 1421-07, Högsta domstolen)
OOjs UI icon close-ltr-destructive.svg   Porcelain [1] "Sundborn", made by Rörstrand
OOjs UI icon close-ltr-destructive.svg   Photo illustrating a newspaper article RH 2009:18 (removed from the website in 2004 because of copyright infringement, protected as a photographic work for 70 years after author's death)
OOjs UI icon close-ltr-destructive.svg   Knitted tunic (NJA 1995 s. 164)
OOjs UI icon close-ltr-destructive.svg   Technical drawings (NJA 1998 s. 563)
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COM:TOO Switzerland

スイス

Swiss copyright law defines works as "literary and artistic intellectual creations with individual character, irrespective of their value or purpose".[13] Such works are protected by copyright: "Up to 70 years after the death of the author (50 years for computer programs); 50 years from the taking of a photograph without individual character; 70 years from the performance/publication of a phonogram or audio-visual fixation; 50 years from the transmission of a broadcast."[14] This section discusses some types of subject matter.

Photographs: Photographs may be protected as works on the basis of their individual character (individual photographs). Some photographs that lack individual character may also enjoy protection (non-individual photographs).

  • Individual photographs: The individual character may manifest itself in a variety of ways, such as the choice of the depicted object, the decision on when the picture is taken, or the editing work done after the picture has been taken.[15] In a 2003 decision, the Federal Supreme Court of Switzerland held that a photo of Bob Marley taken at a concert by a spectator with a handheld camera was eligible for protection as a photographic work because it had the required individual character by virtue of the aesthetic appeal of the picture, combined with the orientation of the picture's components and the distribution of light and shadow. It also found that the photograph was a "creation of the mind" by being shot at a specific time during the singer's movement on the stage.[16] By contrast, in the 2004 case Blau Guggenheim v. British Broadcasting Corporation, the Court found that a photo (en:File:Christoph Meili 1997-nonfree.jpg), shot by a reporter to document Christoph Meili with the files he had taken from his employer, lacked individual character. It found that the scope of conceptual and technical possibilities was not exploited, and that the photograph did not distinguish itself in any way from what was common use.[17] The copyright in an individual photograph lasts for 70 years from the end of the calendar year in which the author died.[18]
  • Non-individual photographs: Effective 1 April 2020, Swiss law also protects certain non-individual photographs. Article 2(3bis) URG provides that "photographic depictions and depictions of three-dimensional objects produced by a process similar to that of photography are considered works, even if they do not have individual character". While no individuality is required, according to the official motives accompanying the (eventually adopted) revision draft, these photographs are still required to be "based on human actions", and thus "automatically created photographs such as radar pictures, pictures from surveillance cameras or camera traps" are ineligible for protection.[19] It should be noted that the new right also applies to photographs created before 1 April 2020 that had previously not been protected for failing the individuality test; however, if a particular use of a non-individual photograph was "begun prior to the commencement" of the new law, it "may be completed".[20] According to the official motives, this has the effect that "if non-individual photographs are used on a web page, the web page may be maintained after the entry into force of the protection of non-individual photographs. If, on the other hand, such photographs are included into an existing or a new web page after the entry into force of this protection, permission is required from the owner of the rights in the non-individual photographs."[21] The copyright in a non-individual photograph lasts for 50 years from the end of the calendar year in which the photo was taken.[22]
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中華民国

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トルコ

Might be OOjs UI icon check-constructive.svg OK The Turkish copyright laws depend on that the work bears the characteristics of creator while deciding whether the work is original, and considered on a case-by-case basis.[23]

Common law countries

Common law countries typically use a "skill and labour" test to determine the minimum level of originality capable of attracting copyright protection. The required level is extremely low in some countries such as Australia and the United Kingdom. However, Canada and India are major two exceptions. Without some research into individual laws, it cannot be assumed that a text logo from a Common law country is necessarily allowed on Commons. If there is real doubt about the position a local court would take, then the image must be deleted under the precautionary principle.

If the logo is extremely simple (e.g. in a standard font), it will not be eligible for copyright even in Common law countries.

If you are aware of specific case law or legal advice on this issue in any country, please add a "Threshold of originality" section to the appropriate Commons:Copyright rules by territory country subpage, and add a link to it with an entry below.

No information available

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COM:TOO Canada

カナダ

 

for images that are not creative in the sense of being a product of non-trivial "skill and judgment" as discussed below.

Unlike other common law countries, Canada's threshold of originality veers closer to that of the United States. CCH Canadian Ltd. v. Law Society of Upper Canada explicitly rejected the "sweat of the brow" doctrine for being too low of a standard, but at the same time, stated that the creativity standards for originality were too high:

A creativity standard implies that something must be novel or non-obvious — concepts more properly associated with patent law than copyright law. And for these reasons, I conclude that an “original” work under the Copyright Act is one that originates from an author and is not copied from another work. That alone, however, is not sufficient to find that something is original. In addition, an original work must be the product of an author’s exercise of skill and judgment. The exercise of skill and judgment required to produce the work must not be so trivial that it could be characterized as a purely mechanical exercise."

The same case also stated:

For a work to be “original” within the meaning of the Copyright Act, it must be more than a mere copy of another work. At the same time, it need not be creative, in the sense of being novel or unique. What is required to attract copyright protection in the expression of an idea is an exercise of skill and judgment. By skill, I mean the use of one’s knowledge, developed aptitude or practised ability in producing the work. By judgment, I mean the use of one’s capacity for discernment or ability to form an opinion or evaluation by comparing different possible options in producing the work. This exercise of skill and judgment will necessarily involve intellectual effort.

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香港

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インド

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アイルランド

No information available

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イスラエル

Although Israel historically used a "skill and labour" test similar to that used by the UK, since the 1989 Israeli Supreme Court's ruling in Interlego A/S v. Exin-Lines Bros. SA they have tended fairly close to a US-style requirement equating originality with human creativity.[24]

In Israel, the Supreme Court in the Interlego A/S v. Exin-Lines Bros. SA decision adopted the Feist ruling with regards to both the interpretation of the originality requirement and the general rejection of the ‘sweat of the brow’ doctrine and the labour theory as a legitimate interest for establishing a copyright claim.

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COM:TOO Malaysia

マレーシア


The threshold of originality situation in Malaysia remains Purple question mark.svg Unsure. Some previous discussions:

  1. The File:Hcc.png was deleted probably based on calligraphic Chinese words, and cited that COM:TOO UK may also applied for deletion;
  2. But the File:Petronas Logo.svg was nominated and decided to keep twice, despite that this may also beyond COM:TOO UK. Note that this logo is used before June 2013, and since that, the Petronas modified their logo to me more modern and fairly complex, the current Petronas logo is located at English Wikipedia for Fair use, though some users against that situation.
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COM:TOO Nigeria

ナイジェリア

Under the Copyright Act of 1988 (Chapter C.28, as codified 2004), A literary, musical or artistic work shall not be eligible for copyright unless (a) sufficient effort has been expended on making the work to give it an original character;...[C28/2004 Section 1(2)]

As stated in the New Zealand government's NZGOAL copyright guide (January 2015),

  • As the Court of Appeal has stated, the “threshold test for originality is not high”, the determining factor being “whether sufficient time, skill, labour, or judgment has been expended in producing the work”. The Court has also reiterated the axiom, or principle, that copyright is not concerned with the originality of ideas but with the form of their expression. A work is not original, however, if (a) it is, or to the extent that it is, a copy of another work; or (b) it infringes the copyright in, or to the extent that it infringes the copyright in, another work.

[25]


For logos

OOjs UI icon close-ltr-destructive.svg Likely not OK for most logos. The level of originality required for copyright protection is presumably very low.

Because Singapore was a territory of the United Kingdom until 1963, Singapore law is modeled on UK law, and in the absence of any specific case law to the contrary it is reasonable to assume that the rules will be similar. See the United Kingdom for more details.

For buildings

Assume all Singaporean buildings as copyrighted, regardless of design or artistry involved. Copyright Act 2021 (Act 22 of 2021) explicitly considers all buildings as artistic works: a building or a model of a building (whether the building or model is of artistic quality or not).[22/2021 Section 20(1)(a)(ii)] Please use {{FoP-Singapore}} even to plain-looking Singaporean buildings instead of {{PD-structure|SGP}}.

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COM:TOO United Kingdom

イギリス

No information available

Logos and flags

Architecture

Images which have been kept because of lack of originality or de minimis:

Note that some of these decisions were controversial.

Photographs

Photographs which have been deemed ineligible for copyright protection:

Maps

Maps which have been deemed ineligible for copyright protection:

Darden v. Peters: the addition of "font and color selection; visual effects such as relief, shadowing, and shading; labeling; call-outs" and anti-aliasing to a preexisting map is below the threshold of originality

Use: {{PD-map}}. See the section farther down on partial copying or cropping of uncopyrightable elements from copyrighted works.

See also:

Charts

Charts which have been deemed ineligible for copyright protection. Use: {{PD-chart}}. See the section farther down on partial copying or cropping of uncopyrightable elements from copyrighted works. See also:

Partial copying or cropping of copyrighted works

When a file copies only part of a copyrighted work, that file's copyright status is determined only by what it has copied. If it only copied uncopyrightable elements, then the file is also uncopyrightable. In other words, we judge the copyright status of a file only by what the file itself contains, not by the status of other content the original source contained that was not copied by the file.

OOjs UI icon check-constructive.svg OK
Burr by Gore Vidal - first edition cover.jpg
This image of the front cover of a novel is public domain in the USA because it only copies uncopyrightable text, not copyrightable contents of the book itself or possibly-copyrightable contents of the back cover. (DR) It would probably not be PD in UK because of the UK's publisher's 25 year copyright on typography, except for the fact that this typographical arrangement was published over 25 years ago.

Lower threshold in United Kingdom etc.

See also

References

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  1. Message which brought hope now copyright of Chile miner. BBC (22 October 2010). Retrieved on 2019-01-21.
  2. Logó szerzői jogi védelme Ügyszám: SZJSZT – 17/12 (in Hungarian). Copyright Expert Panel (20 February 2013). Retrieved on 2019-03-26.
  3. SZJSZT 1/2005
  4. Cite error: Invalid <ref> tag; no text was provided for refs named IndTOO
  5. Cite error: Invalid <ref> tag; no text was provided for refs named Lovells
  6. Logo on external site DR
  7. Cite error: Invalid <ref> tag; no text was provided for refs named Høyesteretts2007
  8. Cite error: Invalid <ref> tag; no text was provided for refs named JuliBlåfjelllogo
  9. Cite error: Invalid <ref> tag; no text was provided for refs named Kluwer
  10. https://www.poderjudicial.es/search/TS/openDocument/d42c9049784c7c02/20040821 p. 4
  11. https://www.poderjudicial.es/search/TS/openDocument/a95395d6789f5037/20170509 p. 9
  12. Cite error: Invalid <ref> tag; no text was provided for refs named PRVprotected
  13. Federal Act on Copyright and Related Rights, art 2(1). SR 231.1 Bundesgesetz über das Urheberrecht und verwandte Schutzrechte. Government of Switzerland. Retrieved on 12 September 2020.
  14. Envisioned. Created. Protected. – A Concise Guide to Trade Marks, Patents & Co.. Swiss Federal Institute of Intellectual Property (April 2020). Retrieved on 22 August 2021.
  15. Cf BGE 130 III 168, 173 – Bob Marley.
  16. X. gegen Y. AG, decision of the Swiss Federal Supreme Court of September 5, 2003; BGE 130 III 168.
  17. Blau Guggenheim gegen British Broadcasting Corporation BBC, decision of the Swiss Federal Supreme Court of April 19, 2004; BGE 130 III 714.
  18. Art 29(2) lit b URG.
  19. Bundesrat, "Botschaft zur Änderung des Urheberrechtsgesetzes sowie zur Genehmigung zweier Abkommen der Weltorganisation für geistiges Eigentum und zu deren Umsetzung", BBl 2018 591, 620. See also W Egloff in D Barrelet and W Egloff (eds), Das neue Urheberrecht (4th edn, Stämpfli 2020) art 2 para 35.
  20. Art 80(2) URG. W Egloff in D Barrelet and W Egloff (eds), Das neue Urheberrecht (4th edn, Stämpfli 2020) art 2 para 38; P Mosimann and Y Hostettler, "Zur Revision des Urheberrechtsgesetzes" (2018) 36 recht 123, 126; Bundesrat, "Botschaft zur Änderung des Urheberrechtsgesetzes sowie zur Genehmigung zweier Abkommen der Weltorganisation für geistiges Eigentum und zu deren Umsetzung", BBl 2018 591, 620 («In Verbindung mit Artikel 80 Absatz 1 URG führt die Erweiterung des Schutzumfangs auf Fotografien ohne individuellen Charakter dazu, dass der Urheberrechtsschutz solche Fotografien auch dann erfassen wird, wenn sie vor seinem Inkrafttreten dieser Teilrevision geschaffen wurden.»).
  21. Bundesrat, "Botschaft zur Änderung des Urheberrechtsgesetzes sowie zur Genehmigung zweier Abkommen der Weltorganisation für geistiges Eigentum und zu deren Umsetzung", BBl 2018 591, 621.
  22. Art 29(2) lit abis, 29(4) URG.
  23. ECONOMIC AND MORAL RIGHTS IN TURKISH AND EUROPEAN UNION COPYRIGHT LAW (2009).
  24. Cite error: Invalid <ref> tag; no text was provided for refs named Pessach
  25. NZGOAL copyright guide. New Zealand Government (January 2015). Retrieved on 2019-03-16.

For more complete, working references see Commons:各国の著作権ルール and the individual countries and territories: